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Comments on the Nuremberg Principles and Conscientious Objection with Special Reference to War Crimes The Catholic Lawyer Volume 16 Number 3 Volume 16, Summer 1970, Number 3 Article 7 Comments on the Nuremberg Principles and Conscientious Objection with Special Reference to War Crimes Robert K. Woetzel Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Comparative and Foreign Law Commons, Constitutional Law Commons, and the International Humanitarian Law Commons This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. COMMENTS ON THE NUREMBERG PRINCIPLES AND CONSCIENTIOUS OBJECTION WITH SPECIAL REFERENCE TO WAR CRIMES ROBERT K. WOETZEL* N ORDER TO ARRIVE at a balanced assessment of the current applica- bility of the Nuremberg principles, the context in which the trials were conducted should first be examined. Nuremberg took place at a time when there was a breakdown of authority in Germany. The bases of authority were being challenged within a frame of reference of a basic conflict of values. The power preached by the Nazis provoked a strong reaction which could readily be exemplified by the current edict of youth: "Make love-not war!" The Nuremberg principles state that an individual can be held responsible for crimes against peace, crimes against humanity, war crimes, and membership in criminal organizations. They were un- animously endorsed by the United Nations in General Assembly Resolution No. 95 (1) and reconfirmed in codified forms as of De- cember 12, 1950.1 They can be regarded as part of international law. * President, Foundation for the Establishment of an International Criminal Court, Professor of International Politics and Law, Boston College. A.B., Colum- bia University, 1952; Ph.D., Oxford University, 1958; J.S.D., Bonn University, 1959. 1 Principles of international law recognized in the Charter and Judgment of the International Military Tribunal at Nuremberg as formulated by the International Law Commission, June-July, 1950: Principle I. Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment. Principle I. The fact that internal law does not impose a penalty for an act 16 CATHOLIC LAWYER, SUMMER 1970 It is clear that the endorsement by the a war crimes trial constitutes tangible United Nations of principles applied in evidence that the majority of nations at that particular time recognized them as valid principles of international law. which constitutes a crime under international law does not relieve the person who committed The Constitution of the United States the act from responsibility under international declares that treaties are part of the law law. of the land.2 The Nuremberg principles Principle Ill. The fact that a person who committed an act which constitutes a crime were contained in the London Agreement under international law acted as Head of State of 1945 which set up the International or responsible government official does not re- Military Tribunal (IMT) that tried the lieve him from responsibility tinder interna- major German war criminals. The agree- tional law. Principle IV. The fact that a person acted ment, which has the force of a treaty, was pursuant to order of his Government or of a signed by the United States, Great Britain, superior does not relieve him from responsi- France, and the Soviet Union, and acceded bility tinder international law, provided a moral choice was in fact possible for him. to by 19 other countries; it is part of the Principle V. Any person charged with a law of the land." crime Linder international law has the right to a fair trial on the facts and law. While it is U.S. practice to regard the Principle VI. The crimes hereinafter set out most recent law as binding according to are punishable as crimes under international law: the principle lex posterior derogat legi 4 a. Crimes against peace: priori, no law since the London agree- (i) Planning, preparing, initiation or wag- ment conflicts with its basic provisions. ing of a war of aggression or a war in viola- In fact, U.S. leaders have time and again tion of international treaties, agreements or assurances; declared their adherence to them. The (ii) Participation in a common plan or succeeding military tribunals at Nurem- conspiracy for the accomplishment of any of berg confirmed them as did the IMT for the acts mentioned under (i). 5 b. War Crimes: the Far East with only slight variations. Violations of the laws or customs of war which include, but are not limited to, murder, ill- The question arises to what extent the treatment or deportation to slave-labor or for provisions of the Selective Service System any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or pri- of a crime against humanity as set forth in vate property, wanton destruction of cities, Principle V[ is a crime tinder international towns or villages, or devastation not justified law. by military necessity. 2 U.S. CONST. art. Vt, § 2; see also DEP'T OF c. Crimes against humanity: ARMY, FIELD MANUAL 27-10, para. 7 (1956). Murder, extermination, enslavement, deporta- 3 United States v. Pink, 296 U.S. 558 (1935). tion and other inhuman acts done against any 4 See Cook v. United States, 288 U.S. 102 civilian population, or persecutions on political, racial or religious grounds, when such acts are (1933); Hijo v. United States, 194 U.S. 315 (1904); Foster v. Neilson, 27 U.S. (2 Pet.) 254 done or such persecutions are carried on in execution of or in connection with any crime (1829). against peace or any war crime. B R. WOETZEL, THE NUREM1BERG TRIALS IN IN- Principle VII. Complicity in the commission TERNATIONAL LAW 226-32 (1962). COMMENTS ON THE NUREMBERG PRINCIPLES conflict with the Nuremberg principles. 6 No international organ exists at this time The IMT at Nuremberg did not deny the which could adjudicate claims against the jurisdiction of the State to institute com- armed forces of a country. Under the pulsory military service. Nor did the court Geneva Conventions of 1949, states may consider such service ipso facto a crime. take jurisdiction over war crimes according In the case of membership in criminal to the universal principle.9 Such liability organizations, the court required that it be has not been extended to service as such. proven that an individual could be expected In each case, guilt has to be proven. It to know of its criminal character, and would seem that an individual could be that he became or remained a member made liable for participation in criminal voluntarily. 7 The Selective Service System acts under international law, while at the has not been condemned by any official same time he would have no recourse to organ as in violation of international law. resist being forced into such actions. Nor has any agency of the U.S. Govern- In the event that the proportions of ment. Membership in the U.S. armed criminality extend to genocide, an inter- services, therefore, does not in itself con- national court could be constituted to try stitute an offense. such violations under the Genocide Con- 8 In United States v. Levy, it was shown vention of 1948.10 The fact that the United that the Green Berets have engaged in States and certain other countries have activities that might be regarded as crimes not ratified the Genocide Convention does against humanity, e.g., such atrocities as not abrogate its universal character in view the severing of ears, etc. It may be that of the fact that it codifies existing principles participation in such actions constitutes a of international law which were applied violation of international law according to at Nuremberg and confirmed by the United the Nuremberg principles. This would not, Nations1 however, justify resistance to the draft 2 unless the organization in question had In United States v. Mitchell,1 the court been branded as a criminal one. Since no refused to decide the question whether such action has taken place, there is no or not the Vietnam War was in viola- a priori case to be made out for refusing tion of the Nuremberg principles. The to serve in the armed forces on grounds court-martial in Levy did consider evi- of these principles. dence with regard to the claim of crimes against humanity but dismissed it as in- Nevertheless, an issue of conscience re- mains as long as a doubt exists about the possibility or necessity of committing 9 Four Geneva Conventions, in 75 UNITED NA- criminal actions in the course of service. TIONS TREATY SERIES. Nos. 970-73 [hereinafter Four Geneva Conventions]. 10 Convention on the Prevention and Punishment 6 Military Selective Service Act of 1967, 81 Stat. of the Crime of Genocide, G.A. Res. 260, 3 U.N. 102, 50 U.S.C. App. § 456(j) (1967). GAOR, at 174, U.N. Doc. A/810 (1948). 7 See R. WOETZEL, supra note 5, at 192. 11 R. WOETZEL, supra note 5, at 232 et seq. 8 39 Court Martial Reports 672 (1969). 12 369 F.2d 323 (2d Cir. 1966). 16 CATHOLIC LAWYER, SUMMER 1970 sufficient. It would seem that the tribunal justice to be mete out, it is necessary to was aware of the relevance of the Nurem- take into account facts that may have berg principles, even though it was not motivated the individual.
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